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September 28, 2013

Could execution drug difficulties and switches result in real public health problems?

The question in the title of this post is prompted by this AP article, headlined "Use of drug for execution might cut supply: Missouri plans on using common anesthetic in October to kill convicted murderer." Here are excerpts:

The planned use of a common anesthetic in a Missouri execution is raising concerns that the anti-death penalty European Union could limit export of the drug, endangering the supply of a vital medication used every day in thousands of American hospitals and clinics.

The execution scheduled for Oct. 23 would be the first to use propofol, which is by far the nation’s most popular anesthetic. About 50 million vials are administered annually in some 15,000 locations. That’s about four-fifths of all anesthetic procedures, according to the American Society of Anesthesiologists. Propofol is popular because it works quickly and patients wake up faster with fewer side effects such as post-operative nausea.

Roughly 85 percent of the U.S. supply of propofol is made in Europe, where capital punishment is outlawed, by the German company Fresenius Kabi. Export is controlled by the European Union, which prohibits trade in goods that could be used for executions. The EU is reviewing whether to subject propofol to that rule.

If it is added to the regulation, propofol would be subject to export controls, not a complete ban, EU spokeswoman Maja Kocijancic said.
Still, any change in export practices could have a drastic effect on propofol’s availability in the U.S., said Matt Kuhn, a spokesman for Fresenius Kabi USA.
“It’s a real concern,” Kuhn said Friday. “And it could have enormous public health implications.”

Fresenius Kabi has launched a website specifically to address the ramifications of using propofol in a U.S. execution, http://propofol-info.com.
The Food and Drug Administration is worried about any move that could affect access to propofol. FDA spokeswoman Erica Jefferson said the agency is weighing how to reach out to European officials to ensure the drug remains readily available.
“We do consider this a critical need,” Jefferson said. “Without the drug, we’re concerned that surgeries would be delayed and patients would be at risk.”

Until recently, Missouri and other states with the death penalty used virtually the same three-drug protocol. That changed in recent years as drug makers stopped selling the traditional execution drugs to prison officials because they didn’t want them used for lethal injections.

Last year, the Missouri Department of Corrections turned to propofol, which made headlines in 2009 when pop star Michael Jackson died after overdosing on the drug. So far, Missouri is the only state to adopt propofol for executions, though it has not yet put anyone to death with the drug.

At one point, the shortage of execution drugs was so concerning in the state that Attorney General Chris Koster hinted that use of the gas chamber was a possible alternative. Missouri used gas for executions in the early 1900s but no longer has a working chamber.

September 27, 2013

Thanks to How Appealing here, I have just seen that Judge Jack Weinstein wasted little time in responding to the ruling yesterday by the Second Circuit in US v. Reingold (discussed here) that Judge Weinstein had erred when sentencing a young defendant who distributed child pornography below the applicable five-year mandatory minimum term based on the Eighth Amendment. Judge Weinstein's response appears in this nine-page Memorandum and Order, which gets started this way:

This case exemplifies the sometimes unnecessary cruelty of our federal criminal law.
The Court of Appeals for the Second Circuit has ordered — pursuant to statutes it held binding — that defendant’s prison term be increased substantially; another 30 months must now be added to the term reluctantly imposed by the district court of 30 months in a prison medical treatment center — an additional period likely to be spent in the general prison population. See United States v. Reingold, No. 11-2826-cr (2d Cir. Sept. 13, 2013) (order reversing in part as to
sentencing and remanding); United States v. Reingold, No. 11-2826-cr (2d Cir. Sept. 26, 2013)
(opinion of the court remanding for resentencing). Such a long sentence is unjust.

After release from prison, C.R. will be severely restricted as a convicted sex offender in
where, and with whom, he can live, work and recreate for up to life. See 42 U.S.C. §§ 16911,
16915(a)(1), 16915(b); N.Y. Correct. Law § 168-h(1); Judgment of Conviction, United States v.
C.R., No. 09-CR-155 (E.D.N.Y. Jun. 21, 2011), ECF No. 157; cf. Michael Schwirtz, In 2
Trailers, the Neighbors Nobody Wants, N.Y. Times, Feb. 5, 2013, at A1 (discussing the lack of
permissible, housing for “sex offenders”).

The effect of harsh minimum sentences in cases such as C.R.’s is, effectively, to destroy
young lives unnecessarily. The ancient analog of our modern destruction of youngsters by cruel, unnecessarily destructive and self-defeating, long minimum prison sentences, was physically
sacrificing them to ancient gods for the supposed benefit of society. Leviticus 18:21 (King James
ed.) warns, “[T]hou shalt not let any of thy [children] pass through the fire to Molech.” See
W. Gunther Plaut et al., The Torah: A Modern Commentary, 149 n.1, 883 (1981) (ancient human
sacrifice of children); Maimonedes Mishneh Torah, 116 (Rabbi Eliyahu trans. with
commentaries and notes, Moznaim Publ’g. Corp. 2001) (“[A] person who gives his descendants
to Molech” is executed by stoning.). And a pillar of major religions is the banning of the
sacrifice of children. Genesis 22:12-13; see Plaut et al., at 149 (“[R]eligion . . . rejects the
sacrifice of a [mortal] son . . . .”). Yet we continue using the criminal law to unnecessarily crush
the lives of our young.

An important duty of an Article III district judge is to prevent injustices by the
government in individual cases. See United States v. Ingram, 2013 WL 2666281, at *14 n.9 (2d
Cir. June 14, 2013) (Calabresi, J. concurring) (“[W]e judges have a right — a duty even — to
express criticism of legislative judgments that require us to uphold results we think are wrong.”
(footnotes and citations omitted)); Charles E. Wyzanski, Jr., A Trial Judge’s Freedom and
Responsibility, 65 Harv. L. Rev. 1281, 1303 (1952) (“clearly ethical in its nature”); Jack B.
Weinstein, Every Day Is A Good Day for A Judge To Lay Down His Professional Life for
Justice, 32 Fordham Urb. L. J. 131, 155 (2004) (“The judge must decide: does this law violate
the essence of my duty to . . . humanity.”). Where, as here, in the opinion of a ruling appellate
court, the trial court has exceeded its power, at least the matter has been brought to the
government’s and public’s attention, so that in due course, in our caring democracy, future
injustices of this kind will be avoided.

"The New Asylums: Jails Swell With Mentally Ill"

America's lockups are its new asylums. After scores of state mental institutions were closed beginning in the 1970s, few alternatives materialized. Many of the afflicted wound up on the streets, where, untreated, they became more vulnerable to joblessness, drug abuse and crime.

The country's three biggest jail systems — Cook County, in Illinois; Los Angeles County; and New York City — are on the front lines. With more than 11,000 prisoners under treatment on any given day, they represent by far the largest mental-health treatment facilities in the country. By comparison, the three largest state-run mental hospitals have a combined 4,000 beds.

Put another way, the number of mentally ill prisoners the three facilities handle daily is equal to 28% of all beds in the nation's 213 state psychiatric hospitals, according to the National Association of State Mental Health Program Directors Research Institute Inc.
"In every city and state I have visited, the jails have become the de facto mental institutions," says Esteban Gonzalez, president of the American Jail Association, an organization for jail employees.

Correctional systems define mental illness differently. Generally, the term is used to describe prisoners who require medication for serious issues ranging from major depressive disorders to schizophrenia and bipolar disorders. Also included are inmates with diagnoses that warrant overnight stays in a mental hospital or who demonstrate serious functional impairment.

To get a snapshot of how the U.S. is grappling with such an explosive societal issue, The Wall Street Journal surveyed all 50 states about issues of mental health within their prison populations. Of the 22 states that provided detailed responses, their mental-health patient ratios ranged from one in 10 inmates to one in two. Inmates in all 23 responding states account for 55% of the prisoners in the U.S. under state jurisdiction.

In Oregon, the trend is particularly acute. Officials there estimate that half the state's 14,000 prison inmates suffer from some type of mental-health issue.
Several states with large inmate populations, like Michigan and Illinois, reported to the Journal that about 8% to 10% of their inmates suffered from serious mental illnesses, such as schizophrenia. Smaller states, like Montana, said as many as 15% of their inmates suffered from serious mental illness.

Roughly 5% of all adult Americans suffer from a serious mental illness, according to a 2012 report by a division of the U.S. Department of Health and Human Services.

Caring for such distressed inmates is costly. National Alliance on Mental Illness, one of the leading advocacy research groups, estimates that prisoners with mental illness cost the nation $9 billion annually.
Other challenges are evident. In Los Angeles, for example, the U.S. Department of Justice found in 1997 that mentally ill inmates were abused and endured conditions that violated their federal civil rights.

Earlier this month the DOJ sent a letter to L.A. officials saying that despite some apparent progress, there is "a growing number" of mentally ill inmates housed in general population quarters at Men's Central Jail, as well as a "recent increase in suicides."
Assistant Los Angeles County Sheriff Terri McDonald said the growing population of mentally ill inmates "certainly strains the system." She said they would continue to work with DOJ officials "and we welcome their thoughts."

Some facilities have attempted to cope by hiring psychiatric staff and retraining prison officers. Few, however, claim to be adequately equipped to handle some of the nation's most mentally frail. A seeming revolving door compounds the problem: Upon their release, the mentally ill tend to find scant resources and often quickly fall back into the system, says Mr. Gonzalez.

Even in some areas that have seen reductions in the general inmate population, the mentally ill constitute a growing share of correctional space.
For example, New York City's total prison population has fallen to 11,500, down from 13,576 in 2005. Yet the number of mentally ill prisoners has risen, to 4,300 from 3,319, says Dora Schriro, commissioner of corrections for the city. That means the city's percentage of mentally ill prisoners grew from 24% to 37%.

The picture echoes the past. Two centuries ago, reformers were disturbed to find large numbers of the mentally ill in jails, paving the way for the development of state-run institutions. In the 1950s and 1960s, complaints about abuses, advances in medication and a push to give the patients more independence led to another change, this time toward community settings. The weaknesses of that concept—a lack of facilities, barriers created by privacy laws and tightened local and state funding—has brought the picture full circle.

"Society was horrified to warehouse people in state hospitals, but we have no problem with warehousing them in jails and prisons," says Thomas Dart, sheriff of Cook County.

September 26, 2013

House Government Operations subcomittee to examine "Federal Response to Marijuana Legislation" ... OR NOT

Though sure to be overshadowed (and perhaps precluded) by the prospects of a federal government shutdown, on Wednesday October 2, 2013 at 10am, as noted at this official webpage, there will be Hearing before the United States House of Representatives Subcommittee of Government Operations titled "Examining the Federal Response to Marijuana Legislation."

I am inclined to suspect that this hearing will not be quite a pro-reform-oriented as the similar Senate Judiciary Committee hearing which took place earlier this month (discussed here and here and here). Yet, as this local press report notes, one of the members of this House Subcommittee, Rep. Justin Amash from Michigan, is a co-sponsor of a bill titled "Respect State Marijuana Laws Act" which aspires to prevent the feds from criminally prosecuting persons who act in compliance with state marijuana laws. Consequently, there could well be a prominent states' rights theme to this hearing.

UPDATE:
A check on the House Subcommittee website linked above, the morning of
October 2, 2013, now shows no record of this previously scheduled
hearing. I am not sure if this hearing was cancelled because of the
federal government shutdown or for other reasons, but I am intrigued and
deeply disappointed this hearing is apparently no longer going to
happen. Bummer.

As reported in this local article, which is headlined "Group wants law excluding severely mentally ill from death penalty," Joint Task Force to Review the Administration of Ohio’s Death Penalty (of which I am a member) endorsed a significant recommendation with respect to mental illness and the administration of the death penalty. Here are the basics:

A state task force today voted to recommend that the state legislature pass a law excluding the severely mental ill from the death penalty in murder cases.

The Joint Task Force to Review the Administration of Ohio’s Death Penalty, a creation of the Ohio Supreme Court and the Ohio State Bar Association, wants the General Assembly to hold hearings and pass a law to prevent people who have a severe mental illness, such as schizophrenia, at the time of the crime from facing the death penalty. The aim is not to stop them from being prosecuted, however.

Despite the vote, there is a deep divide among task force members about what constitutes serious mental illness and whether the current legal system does an adequate job of screening for it.

“I don’t want everyone with ADHD or some real or imaginary disability to avoid responsibility,” said state Sen. Bill Seitz, R-Cincinnati, a task force member who voted for the proposal but with reservations.

Hamilton County Prosecutor Joseph Deters said the court system screens out the seriously mentally ill through the trial and appeal process. “We are producing more and more layers of litigation in capital cases that I think are unnecessary.”

John Parker, a Cleveland attorney whose subcommittee recommended the exclusion, reasoned that the legislature, not the task force, is best equipped to decide what he admitted will be a contentious issue after hearing from law enforcement, prosecutors, the public defender, mental health experts and others.

Judge Kathleen Keough of the Cleveland Court of Appeals said walling off the seriously mentally ill from the possibility of being executed is “a matter of common decency.” She said the federal courts have ruled that the mentally retarded and juveniles cannot be executed and people with severe mental illness should be considered similarly. “Mental illness is not a choice,” she said....

The task force was motivated to make the proposal by former Ohio Supreme Court Judge Evelyn Lundberg Stratton, a longtime advocate for the mentally ill, who recommended when she was on the court two years ago that the “time had come to re-examine whether we as a society should administer the death penalty to a person with a serious mental illness.”

The task force, which convened nearly two years ago, will wrap up its meetings in November and begin drafting a final report to the governor and state legislators to be submitted next year.

The Second Circuit via a lengthy panel decision today in US v. Reingold, No. 11-2826 (2d Cir. Sept. 26, 2013) (available here), reverses a decision by Judge Jack Weinstein to sentence a young defendant who distributed child pornography below the applicable five-year mandatory minimum term based on the Eighth Amendment. Here is how the majority opinion gets started:

Corey Reingold pleaded guilty in the United States District Court for the Eastern
District of New York (Jack B. Weinstein, Judge) to one count of distributing child
pornography. See 18 U.S.C. § 2252(a)(2). The United States now appeals from that part of
the June 21, 2011 judgment of conviction as sentenced Reingold to 30 months’ incarceration.
The government contends that the district court erred in refusing to impose the minimum
five-year prison term mandated by 18 U.S.C. § 2252(b)(1) on the ground that applying such
a punishment to this immature 19-year-old defendant would violate the Cruel and Unusual
Punishment Clause. See U.S. Const. amend. VIII. The government further disputes the
district court’s Sentencing Guidelines calculations. The district court explained its
sentencing decisions both on the record and in a 401-page opinion accompanied by 55 pages
of appendices. See United States v. C.R., 792 F. Supp. 2d 343 (E.D.N.Y. 2011). Having
carefully reviewed that opinion, the applicable law, and the record as a whole, we conclude
that the district court erred in both respects identified by the government. We therefore
remand the case to the district court with directions that it vacate the sentence and resentence
the defendant consistent with this opinion.

I will not have a chance to review closely the 56 pages of Reingold until late tonight, though a quick skim suggests this ruling is a must-read for any and everyone working on sentencing issues in child pornography cases in the federal courts.

New trial granted for defendant subject to long mandatory sentence in Florida "warning shot" case

As reported in this news report, headlined "Marissa Alexander will get a new trial," today there was a notable development in a notable Florida criminal case that garnered some additional attention in the wake of the George Zimmerman prosecution. Here are the basics:

Marissa Alexander, the African-American woman who was sentenced to 20 years for discharging a firearm in Florida despite pleading Stand Your Ground against her husband, will get a new trial. Alexander, 32, said she fired a bullet at the ceiling because she was afraid of her husband. No one was injured. It took 12 minutes for the jury to convict her.

“We reject her contention that the trial court erred in declining to grant her immunity from prosecution under Florida’s Stand Your Ground law,” wrote Judge James H. Daniel, “but we remand for a new trial because the jury instructions on self-defense were erroneous.”

Alexander, who had given birth the week before, testified that after an altercation regarding texts from her ex-husband, she locked herself in the bathroom. Her husband Rico Gray broke through the door, grabbed her by the neck, and shoved her into the door. She ran to the garage, found she couldn’t get the door open, and returned with a gun. When Gray saw the gun, he said, “Bitch, I’ll kill you.” Alexander testified that firing the gun into the air as a warning shot was “the lesser of two evils.”

The jury rejected her self-defense argument, and instead Alexander was sentenced under the “10-20-Life” law, which carries a series of mandatory minimum sentences related to gun crimes. The prosecutor in her case was Angela Corey, who also prosecuted George Zimmerman who was acquitted in the death of Trayvon Martin....

The appeals court judge ruled that the lower court judge improperly put a burden on Alexander to prove that the firing was in self-defense. “The defendant’s burden is only to raise a reasonable doubt concerning self-defense,” Daniel wrote. “The defendant does not have the burden to prove the victim guilty of the aggression defended against beyond a reasonable doubt.” He ordered a retrial. A separate proceeding would determine whether Alexander could be released on bail pending that trial.

The relatively short opinions in this case (a majority opinion and a concurrence) can be accessed at this link.

September 25, 2013

"Lethal Injection Secrecy Post-Baze"

The title of this post is the title of this new and timely piece available via SSRN authored by Deborah Denno. Here is the abstract:

This article assesses the impact of the 2008 Supreme Court case Baze v. Rees on lethal injection, this country’s prevailing method of execution. The Baze Court declared Kentucky’s lethal injection protocol constitutional. Yet the opinion was too weak and vague to quell legal challenges to lethal injection, which have soared in the past five years and led states to modify their lethal injection protocols with unprecedented frequency. This article’s unique analysis of over 300 cases citing Baze from 2008-2013 reveals that states’ lethal injection protocols have become increasingly diverse from one another, and from the original protocol evaluated by the Baze Court. Consequently, Baze has been rendered largely irrelevant a mere five years after its issuance.

Meanwhile, post-Baze legal challenges have been overshadowed by an even bigger obstacle to lethal injection: unanticipated national shortages in lethal injection drugs, which have resulted in a new wave of litigation and protocol changes as states struggle to procure the drugs they need to carry out lethal injection executions. A growing number of states are considering the use of compounding pharmacies to manufacture lethal injection drugs. Yet proposed (and seemingly inevitable) legislation that would increase regulation of these facilities may render compounded drugs ineligible for use in executions.

Left with little guidance from Baze and dwindling drug supplies, states are likely to retreat into secrecy regarding their lethal injection procedures, making it increasingly difficult to identify and address enduring problems with those procedures. This article calls for transparency as a crucial foundation for efforts to ensure that lethal injections remain constitutional at a time when the future of this execution method is far from clear.

Does Senator Ted Cruz agree with GOP Senators Mike Lee and Rand Paul about the need for federal sentencing reform?

Senator Ted Cruz is the man of the political moment, in part because, as of this writing as reported here, he is now in his 20th hour of "speaking on the Senate floor without so much as a bathroom break to interrupt his symbolic demonstration against Obamacare." And while his high-profile efforts in opposition to recent federal health care reforms has helped make him the darling of political right, the question in the title of this post concerns whether Senator Cruz on federal criminal justices issue shares the reform-oriented views of other two others Senators who have been favorites of the tea-party wing of the GOP, namely Mike Lee and Rand Paul.

As regular readers know, Senator Lee is a co-sponsor of S. 1410, the Smarter Sentencing Act, and Senator Paul is the co-sponsor of S. 619, the Justice Safety Valve Act. Though these bills differ in various respects, both would bring big significant changes to the operation of the federal sentencing system. And both are indisputably getting huge political boosts (and clearing space for lots of other federal sentencing reform discussions and developments) because Senator Lee and especially Senator Paul has become active proponents for federal criminal justice reforms.

I have an inkling that, despite Senator Cruz's disaffinity for the GOP establishment in other respects, he is generally more inclined to favor the GOP establishment perspective (generally favoring big federal government and executive power) on criminal justice issues than the tea party perspective now well represented by Senators Lee and Paul. And yet, Senator Cruz's home state of Texas has actually been a leader in recent years on state-level "smart on crime" reforms, and I suspect while serving as State Solicitor in Texas he saw some of the benefits of developing cost-effective, criminal punishment alternatives to imprisonment. Indeed, I would expect that Senator Cruz's Texas experiences and his broader political philosophy should lead him to favoring placing more limits on the reach and power of the federal criminal justice system in order to enable states to develop more innovative, nimble and cost-effective local approaches to combatting crimes and imposing punishment while maximizing liberty and commitments to core constitutional values.

Though a member of the US Senate Committee on the Judiciary, I cannot find on Senator Cruz's official website any detailed discussion of federal criminal justice issues. I want to believe that Senator Ted Cruz agrees with Senators Mike Lee and Rand Paul about the need for federal sentencing reform, and that he might even at some point dedicate his resources and rhetoric toward supporting criminal justice reform efforts being sponsored by his tea-party-oriented GOP colleagues. But perhaps others who know Senator Cruz's record or rhetoric better than I do might have a more informed understanding of just where he now stands on these (somewhat) distinct issues of federal government growth and power.

Federal judges give California officials a little more time to unpack overcrowded prisions

As reported in this local piece, headlined "California prisons: Judges give state more time to deal with inmate release order," Governor Jerry Brown and other California officials have succeeded in getting the court-ordered deadline for prison reform pushed back a bit. Here are the basics:

Giving California prison officials a temporary reprieve to deal with the state's overcrowding crisis, a federal court on Tuesday ordered the Brown administration and inmates' lawyers to discuss whether the latest legislative plan will solve the long-running prison problem.

In the order, a special three-judge panel gave the state until the end of January to report back to the court, for now dissolving a December deadline to rid California's prisons of nearly 10,000 more inmates. The judges indicated that the state and inmates' lawyers could ask for further extensions, suggesting the court may be willing to give California more time to end a decades-long legal battle.
At the same time, the judges ordered California to stop transferring inmates to private or out-of-state prisons while the latest proposal is considered....

Gov. Jerry Brown and the Legislature agreed recently to address the court's overcrowding orders by trying to use mental health and drug treatment programs to limit the number of inmates being sent to the state's prisons for new crimes, asking the judges to give the state three more years to meet the latest goals. State officials have said they would otherwise spend more than $300 million to ship inmates to private prisons and prisons in other states if the judges would not agree to that solution.

In Tuesday's order, the judges did not indicate whether they would accept the proposal, but instructed state officials and inmates' advocates to focus on several categories, including elderly and juvenile inmates, immigration violators, the seriously ill and those serving three-strikes sentences.

The order calls for the two sides to meet in the coming months with San Francisco state appeals court Justice Peter Siggins, formerly a top lawyer in the Brown administration. Siggins is expected to report to the judges on the progress of the negotiations in late October....

The federal judges previously found that the state's prisons are so overcrowded that they fail to give inmates adequate medical and mental health care. The court determined there are still enough problems to require the release of more inmates.

September 24, 2013

Lengthy discussion of "Why Scandinavian Prisons Are Superior"

The title of this post is drawn from the headline of this notable lengthy new article at The Atlantic by Doran Larson. The piece carries the subheading "'Open' prisons, in which detainees are allowed to live like regular citizens, should be a model for the U.S." Here is a snippet from the piece:

Nordic prisons are not all open facilities. Closed prisons here date to the mid-19th century, copied from Philadelphia’s Eastern State, or New York’s Auburn, back when those prisons represented models of humane treatment. To an American eye, these prisons look like prisons: 10-meter walls, cameras, steel doors. I’ve heard men describe Scandinavian closed-prison conditions in ways that echo those of the American prison where I have led a writing workshop since 2006: officials intent on making life onerous, long hours in lockup, arbitrarily enforced rules.

Yet inside the four high-security prisons I’ve visited in Denmark, Norway, Sweden and Finland, common areas included table tennis, pool tables, steel darts, and aquariums. Prisoner art ornamented walls painted in mild greens and browns and blues. But the most profound difference is that correctional officers fill both rehabilitative and security roles. Each prisoner has a “contact officer” who monitors and helps advance progress toward return to the world outside—a practice introduced to help officers avoid the damage experienced by performing purely punitive functions: stress, hypertension, alcoholism, suicide, and other job-related hazards that today plague American corrections officers, who have an average life expectancy of 59.

This is all possible because, throughout Scandinavia, criminal justice policy rarely enters political debate. Decisions about best practices are left to professionals in the field, who are often published criminologists and consult closely with academics. Sustaining the barrier between populist politics and results-based prison policy are media that don’t sensationalize crime—if they report it at all. And all of this takes place in nations with established histories of consensual politics, relatively small and homogenous populations, and the best social service networks in the world, including the best public education. Standing outside a Nordic closed prison, the American son would have felt perfectly at ease. But inside, northern Europe’s closed facilities operate along the lines of humanism that American prisons abandoned early, under a host of pressures -- such as overcrowding, the push to make prisons profitable by contracting out collective labor, the use of unpaid prisoners as private farmhands, and, since 1973, the rise of an $80 billion mass incarceration industry. There is also the matter of scale. The prison population of Sweden (6,900) is less than half the population of Rikers Island at its height (14,000). Several prisons in the U.S. each hold nearly twice the prison population of Finland. This is not simply the difference between large and much smaller countries. U.S. incarceration rates are the highest in the world, about 10 times those throughout Scandinavia, which are among the world’s lowest.

Through the Guideline looking glass, where a prior misdemeanor is really an "aggravated felony"

An oft-quoted passage from the famous Lewis Carroll novel Through the Looking-Glass, and What Alice Found There came to mind as I was reading a recent Fifth Circuit's sentencing ruling. Here is the passage I have in mind:

"When I use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master — that's all."

This first paragraph from the unanimous panel ruling in United States v. Ramirez, No. 13-10473 (5th Cir. Sept. 23, 2013) (available here), should make plain why this literary reference seems apt:

Efrain Hernandez Ramirez pled guilty to one count of illegal reentry
following removal and at his sentencing, the district court applied an eight-level
enhancement based on a prior conviction for an aggravated felony. The
aggravated felony in question was a New York state misdemeanor conviction for
third-degree sexual abuse of a fifteen-year-old girl. Ramirez appeals, arguing
that his misdemeanor conviction cannot be an aggravated felony. For the
following reasons, we AFFIRM.

Documenting the enduring challenges of reentry for parolees and society in Colorado

The Denver Post has had a series of recent notable article on parole policies, practices and practicalities under the heading "Behind Bars." Here are the headlines and links to some of the stories in the series:

Ever the fan of evidence-based policies and technocorrections, I was especially drawn to this article in this series headlined "Technology, quick-reaction programs guiding parole reform in other states." Here is how it starts:

Predicting who will murder is now a science.
In cities including Philadelphia and Baltimore, high-tech software helps determine which parolees are most likely to kill and what level of supervision makes sense.

The crime-prediction computer program was developed by Richard A. Berk, a criminology and statistics professor at The University of Pennsylvania.
"It's saved a lot of money, and resources for those at low risk have been moved to those at higher risk," Berk said. "Human behavior is complicated, and although parole boards might make the best decisions, there is inevitably going to be a mistake."

The software, which makes forecasts based on geographic location, age, type of crime and other variables, is helping parole boards and law enforcement keep closer watch on the most violent offenders.

In Baltimore, where the system is being used to help determine parolee and probation supervision levels, a test of the program on offenders from 2006 had a 75 percent rate in identifying who would kill and be killed, Berk said.
The program doesn't predict whether parolees will commit other crimes. "It's hardly perfect, but we're doing much better than the current seat-of-your-pants forecasting," Berk said.

Pennsylvania is expected to apply the software for all parolees by the end of the year.
Other states have found success moving away from parole-officer discretion to more restrictive supervision and rapid-reaction punishment.

A model program in Washington state dishes out swift and predictable consequences for parolees who mess up, according to Mark Kleiman, a professor at the University of California, Los Angeles.
Criminals, in general, are short-term oriented, so in order to reform behavior, they need near-immediate reaction from their parole officer. Consequences "need to be fast and they need to be every time or they are not fair," said Kleiman, who formerly worked at the U.S. Department of Justice's criminal division.

September 23, 2013

This AP article, headlined "Lawyers ask for more time to submit arguments against death penalty in Boston Marathon bombing," reports on an interesting tussle over procedure in a hearing today concerning one of the highest-profile on-going federal prosecutions. Here are the basics:

Federal authorities plan to recommend whether to seek the death penalty against Boston Marathon bombing suspect Dzhokhar Tsarnaev by the end of next month and expect U.S. Attorney General Eric Holder to decide early next year whether to pursue it, prosecutors said Monday.

But Tsarnaev’s lawyers objected to the timetable and asked a judge for more time to make their case against the death penalty.
During a status conference in U.S. District Court, Tsarnaev’s lawyers said they have not received key evidence from prosecutors yet — including interviews or grand jury testimony of Tsarnaev’s family — and have not had enough time to submit a proposal arguing that Tsarnaev does not deserve the death penalty.

Assistant U.S. Attorney William Weinreb argued that the defense has had almost six months since the bombing. He said federal prosecutors plan to make a recommendation to Holder by Oct. 31. He will have the ultimate say on whether to seek the death penalty; his decision is expected by Jan. 31, Weinreb said....

Weinreb said prosecutors originally asked Tsarnaev’s lawyers to submit their arguments by Aug. 23 but agreed to extend that deadline to October at their request. He said prosecutors are not required by law to wait for input from the defense before submitting their recommendation to Holder.
“We think that six months is a reasonable time,” he said.

But Judy Clarke, one of Tsarnaev’s lawyers, said “it’s a matter of fairness” and asked the judge to delay the date for their submission at least until they get the evidence they are seeking.
“It’s pretty stunning to say they can make a decision based on what they know without some defense input,” said Clarke, a San Diego lawyer who has won life sentences instead of the death penalty for high-profile clients, including the Unabomber and the gunman in the rampage that wounded former U.S. Rep. Gabrielle Giffords of Arizona.

Judge George O’Toole Jr. took no immediate action on the request but agreed to allow the defense to submit arguments on whether the court has the authority to reset any deadlines.

In praise of a stat-max fine that hits a federal white-collar defendant (and not the federal taxpayer) where it hurts

Some readers of this blog may come to (wrongly) believe I tend to disfavor most harsh punishments, whereas in fact I tend to favor most harsh punishments if and whenever they prove to be especially efficacious and economical. Consequently, I tend to be fairly skeptical of punishments in the form of lenghty terms of imprisonment, whereas I tend to be fairly supportive of punishments in other forms.

This mini backstory on my views is provided here to account for my particular affinity for the sentence imposed and now affirmed (via an unpublished ruling) in United States v. Turner, No. 12-6483 (6th Cir. Sept. 20, 2013) (available here). Here is how the opinion gets started, which provides a summary of the ruling and the facts which led up to the defendant's prosecution:

Arch Turner appeals a $250,000 fine imposed by the
district court as part of his sentence for conspiring to buy votes. He argues that the fine is
procedurally unreasonable because the court did not provide specific reasons for the variance from
the Guidelines range of $4,000 to $40,000, and that it is substantively unreasonable because the court
impermissibly considered Turner’s socio-economic status. We conclude that the court adequately
explained its reasoning in open court, that any deficiencies in duplicative explanations did not rise
to the level of plain error, and that the court did not impermissibly rely on Turner’s socio-economic
status. Accordingly, we AFFIRM Turner’s sentence.

Arch Turner, a superintendent of the Breathitt County, Kentucky schools, led and assisted
a group of people to buy votes for a candidate in a May 2010 primary election. He coordinated
meetings in which he distributed funds he had received from third parties for the purpose of buying
votes, and he withdrew cash from his own bank account for the same purpose. During the
government investigation, Turner lied to an FBI agent, convinced a co-conspirator to lie to a grand
jury, and attempted to convince another co-conspirator to lie to FBI agents. During one such
attempt, he told a co-conspirator that the FBI had no evidence against them and that they would not
get in trouble if neither of them told on the other. During another, Turner contacted his codefendant,
which was a violation of his bond release, told his co-defendant that he could not tell on
anyone because he had not seen cash change hands, and instructed his co-defendant to purchase a
phone that could not be traced. Eventually, Turner decided the jig was up and pleaded guilty to
conspiracy to defraud the United States through buying votes, in violation of 18 U.S.C. § 371 and
42 U.S.C. § 1973i(c).

Thanks to a plea deal, this vote-buying scoundral faced "an advisory Guidelines range of 18 to 24 months imprisonment plus 1 to 3 years of supervised release and a $4,000 to $40,000 fine ... [and a] statutory maximum sentence [of] 5 years of imprisonment plus 3 years of supervised release and a $250,000 fine." The district judge thereafter notified In October 2012, the district court issued a notice advising the parties that the court intended to consider an upward variance from the Guidelines range and sought at sentencing to hear arguments concerning an upward variance of “not only time but money.” In the end, the sentencing judge imposed a 24-month prison term (the top of the calculated range) as well as a stat-max fine of $250,000.

I suspect that a number of federal sentencing judges may have shared the view that the defendant in this case deserved to have the "book thrown at him," but I fear that most would have done so by increasing the length of the defendant's imprisonment rather than maxing out his fine. As a federal taxpayer who usually see little obvious public safety benefit from imprisoning a non-violent white-collar offender for more than a few years, I am pleased that the judge in this case concluded that it would be arguably more fair and efficient to punish in this case with a greater deprivation of property rather than a greater deprivation of liberty.

Detailing the extraordinary (and justified?) costs of one federal capital case in Philly

This remarkable local story, headlined "Bill for Savage trial easily tops $10 million," details the remarkable price tag on seeking to achieve capital justice in one remarkable federal criminal case. Here are just some of the remarkable details:

No one protested when a federal jury recommended in June that Kaboni Savage be put to death.
In just a few years, Savage had left a grisly trail in North Philadelphia. He gunned down one man, ordered the killing of five others, and directed the 2004 rowhouse firebombing that killed four children and two women.

The cocaine, PCP, and other drugs he peddled poisoned families, enticed boys into crime, and kept neighborhoods in decay.
Those costs are immeasurable. Determining what taxpayers have spent to investigate, convict, and detain Savage is less so.

A review of records, as well interviews with lawyers and court officials, indicates the public price tag for stopping Savage easily tops $10 million, making it among the costliest prosecutions in city history.

Court-appointed lawyers for Savage and his codefendants have logged more than $3.3 million in fees and expenses -- a record for a federal case in Philadelphia -- and are still billing.
The defense total is a fraction of the prosecution cost, according to one expert. Government lawyers, FBI agents, and staff spent years building the case against Savage, at times working on nothing else.

The jury selection and murder-racketeering trial in Judge R. Barclay Surrick's courtroom lasted seven months.
The court shelled out $325,000 in per-diem payments and travel expenses for 1,100 prospective jurors and the 18 eventually picked for the trial, according to information compiled by court officials.
Juror lunches and snacks topped $24,000. Transcripts cost $249,000.

On most days, a half-dozen U.S. marshals ringed the courtroom and escorted the defendants, jurors, and witnesses. Additional security and travel costs exceeded $283,000, the Marshals Service said....

"Frankly, no one should be surprised to see it cost this much," said Jon B. Gould, an American University law professor who has studied defense costs in federal capital cases. "If we're going to do it right, so that [death-penalty] convictions are accurate, it's going to cost money."

In his 2010 report to the U.S. Judicial Conference, Gould and a colleague, Lisa Greenman, found the median cost for one defendant in a capital case in 2004 was $465,000. The most expensive was $1.7 million per defendant.
Those numbers are likely higher now....

In some ways, the Savage case was an anomaly. U.S. prosecutors in Philadelphia have sought the death penalty three other times since 1998, but never before convinced a jury.
It also reflects an increase in the last decade in federal capital cases, among the most complex to try. And it comes amid government budget woes....

Savage was already serving a 30-year term for a 2005 drug-trafficking conviction when prosecutors built the murder case. The 2009 indictment cited 12 deaths, but the centerpiece was the firebombing he ordered from prison. The victims were the mother, son, and relatives of Eugene Coleman, a former associate preparing to testify against Savage.
"He had never been held accountable for this," said Assistant U.S. Attorney David Troyer, the lead prosecutor. "There was no question that he needed to be held accountable."

Charged with Savage were his sister, Kidada, who helped plot the arson bombing; Robert Merritt Jr., an accused accomplice in the firebombing; and Steven Northington, a hitman for Savage in two other murders. All were eligible for the death penalty, though prosecutors ultimately decided not to seek it for Kidada Savage.

William Purpura, one of Kaboni Savage's lawyers, said the trial was inevitable because prosecutors wouldn't consider a plea deal for life in prison.
"The government's only offer in Kaboni Savage's case was death," he said.
Patricia Hartman, a spokeswoman for U.S. Attorney Zane D. Memeger, said the office would not confirm or deny any plea discussions. But during the trial, prosecutors argued that Savage deserved death because he had made it clear that he could - and would - orchestrate killings from prison....

In interviews, four of the eight court-appointed defense lawyers in the Savage trial said it was the most extensive and exhausting of their career, requiring 16-hour days and preventing them from taking any other clients.
"Other than just sleeping, you weren't doing anything else," said Will Spade, one of Merritt's lawyers, who had been approved for $378,000 in fees through mid-August. "I turned a lot of work away - I think every defense lawyer in the case did that."

The bulk of the fees - $1.2 million - went to Savage's lawyers. Hoey, who had worked the case since February 2010 and served as the lead trial lawyer, billed $589,000.
He said the case was like seven murder trials in one. When those ended, there was another trial - the penalty phase to determine whether Savage should die.

Defense lawyers also claimed $99,000 in case-related expenses through August. Purpura said nearly all of his were for his $3,000-a-month apartment at the Benjamin Franklin residences in Center City.
"There was seven months where I lived in Philadelphia, stayed away from my family," he said. "We hunkered down with this case from early-morning hours to late at night."...

The U.S. Attorney's Office said it would be impossible to determine how much it spent on the case....
Gould said his research suggests prosecutions cost more than twice as much as capital defense. "They have to spend more - and they do," he said.

According to the FBI, the two investigators assigned to the Savage case spent six years working on it exclusively and an additional four years devoting half of their time to the investigation - a tally of more than $1 million even if both made less than six-figure salaries....

And still the case goes on. Kidada Savage and Merritt are awaiting sentencing and hearings on post-trial motions filed by their lawyers. Kaboni Savage's attorneys have also filed motions asking the judge to overturn the verdict or sentencing.
Any decision is likely to be appealed.

Savage will wait with 58 others on death row. Only three inmates have been executed - and none in a decade - since the federal death penalty was reinstated in 1988.
Troyer, 55, said he expects Savage will cost the government time and money for years to come.
"I wouldn't be surprised if this case outlives my longevity with the department -- if not the earth," he said.

I share the federal prosecutor's view that Kaboni Savage needed to be held accountable for all his carnage, and I have long thought that the death penalty is an essential punishment for anyone who has murdered multiple victims and seems likely to murder again if only given an life sentence. Nevertheless, given the federal prosecutor's also astute view that Savage seem likely to be able to appeal his death verdict (and thus forestall his execution) for decades, I find it still hard to avoid thinking that the extraordinary human and economic resources invested in this prosecution constitute a less-than-ideal expenditure of federal taxpayer resources.

Litigation prompting California city to give up Halloween sex offender posting law

As reported in this Los Angeles Times piece, headlined "O.C. city likely to drop Halloween law aimed at sex offenders: A lawsuit challenges a city of Orange law requiring sex offenders to post signs to discourage trick-or-treaters," it appears that just the filing of a constitutional lawsuit is prompting reform of a local ordinance. Here are the basics:

An Orange County city will probably toss out a law requiring registered sex offenders to post a sign in front of their homes on Halloween to discourage trick-or-treaters after it was hit with a federal lawsuit alleging the practice is unconstitutional.

Registered sex offenders in the city of Orange are legally required to post a sign on Halloween, no smaller than 12 by 24 inches, that reads, "No candy or treats at this residence." Violators face a $1,000 fine or up to a year in jail.
The lawsuit, filed Wednesday on behalf of an individual identified only as "John Doe," alleges the law violates the 1st Amendment rights of registered sex offenders and puts them, and anyone living with them, at risk of physical and emotional harm.

"If you think about it, a lot of older kids go out to trick rather than treat," said Janice Bellucci, an attorney and president of the California Reform Sex Offender Laws group. "All you have to do is look for the house with the sign."...

Bellucci filed a similar lawsuit last year to strike down a Simi Valley ordinance that also required people convicted of sex crimes to post a sign. That law also banned them from putting up Halloween displays and outside lighting on Oct. 31.
But the day before the Simi Valley law went into effect, federal court Judge Perry Anderson issued a temporary restraining order barring the city from enforcing the sign provision.

The judge let stand provisions of the ordinance that keep sex offenders from turning on outside lights, decorating their homes and answering their doors to trick-or-treaters....

In Orange, no registered sex offenders have been cited since the ordinance was adopted, said City Atty. Wayne Winthers. When the city passed the law in February 2010 officials counted 81 registered sex offenders, with 81% of them having convictions involving minors, according to city records.

There was no need for the group to file the lawsuit, he said, since the city had been in contact with Bellucci and the City Council was expected to discuss the issue next week in closed session.
"I read the district court's [Simi Valley] ruling and I don't see any reason why the court would look at ours any differently," said Winthers, who said he intended to ask the council to remove the sign requirement from the Halloween ordinance.
"Our intent wasn't to bring any unnecessary harm or scrutiny to any particular individual," Winthers said. "We just wanted to protect children."

September 22, 2013

Will SCOTUS take up Warren Hill's (final?) plea to avoid a Georgia execution?

The question in the title of this post is prompted by this new editorial commentary by Jesse Wegman for the New York Times. The piece is headlined "A Rare Plea to the Court," and here are excerpts:

The Supreme Court’s next term is full of big-ticket issues — from campaign finance to affirmative action to the separation of powers — but a largely overlooked death-penalty appeal the court hasn’t agreed to hear yet could clarify how broadly it views its ultimate power to stop unjust executions.

In 1990 Warren Lee Hill beat a man to death with a nail-studded board, and the state of Georgia sentenced him to die.
Mr. Hill is intellectually disabled, according to all seven mental health experts who have examined him. The Supreme Court banned the execution of intellectually disabled people in 2002, but Mr. Hill remains on death row, trapped by a welter of state and federal laws that prevent him from proving his condition in court....

One hurdle for Mr. Hill is that while four of the seven mental health experts originally found that he met the criteria for mild mental retardation, three did not. Georgia requires intellectual disability to be proved beyond a reasonable doubt — an arguably unconstitutional standard no other state uses. Presumably it is possible to meet this standard. Either way, Georgia courts said a four-three split was not enough. But last year the three experts against Mr. Hill recanted. Seven to zero sounds like a winner, but it didn’t matter, a federal appeals court said, since Mr. Hill was blocked by another law that strictly limits multiple appeals on the same claim.

So Mr. Hill filed a direct appeal to the Supreme Court — a rare request the court even more rarely grants — asking it to order the lower courts to weigh the new evidence. On Sept. 30, the court will consider whether to hear Mr. Hill’s petition. It has been reluctant in the past to exercise this power, but this case is exceptional. At stake is not only a man’s life, but the court’s own authority....

Mr. Hill’s case is as simple as it is unusual: there is compelling evidence that he is categorically ineligible to be executed, and he has nowhere else to turn.